Allahabad High Court
Rambha Singh vs State Of U.P. And 4 Others on 27 May, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:95684-DB
Reserved
AFR
Court No. - 42
Case :- SPECIAL APPEAL No. - 229 of 2019
Appellant :- Rambha Singh
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Gyanendra Kumar Singh,Radha Kant Ojha (Senior Adv)
Counsel for Respondent :- C.S.C.,Parmatma Nand Ojha,Sanjay Chaturvedi,Satendra Tirpathi
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
(Delivered by: Ashwani Kumar Mishra,J.)
1. This intra court appeal is directed against judgment and order dated 7.12.2018, passed by the learned Single Judge in Writ-A No. 12781 of 2018; whereby the challenge laid to the order of District Basic Education Officer, Ballia, dated 19th May, 2018, is rejected.
2. Admitted facts, as are noticed by the learned Single Judge, are that the post of Headmaster in Gautam Purva Madhyamik Vidyalaya, Basti Mundera, District Ballia (hereinafter referred to as the 'Institution') fell vacant on 30th June, 2014 due to retirement of the earlier Headmaster. The Institution is recognized under the provisions of U.P. Basic Education Act, 1972 and is receiving financial aid from the State. The Manager of the Institution, namely Sanjay Singh resigned on 24th April, 2015 and the Deputy Manager, Hridya Nand Singh assumed charge of the office of Manager of the Committee of Management pursuant to resolution of Committee of Management, dated 31st May, 2015. Papers for attestation of signatures of Hridya Nand Singh as Manager were sent to District Basic Education Officer, who approved his signatures on 6.6.2015. Even before attestation of his signatures/recognition as the Manager of the Institution, Hridya Nand Singh initiated the process for appointment to the post of Headmaster by seeking permission to advertise the post vide his letter dated 1st June, 2015. On the very day when signatures of Hridya Nand Singh were attested i.e. 6th June, 2015 the District Basic Education Officer also granted him permission to fill up the post of Headmaster. On the very next day i.e. 7th June, 2015, the vacancy was advertised in two Daily Newspapers namely 'Swatantra Chetna' and 'Anchalik Swar'. The selection proceedings were undertaken by the Committee of Management and ultimately the writ petitioner came to be selected and appointed as Headmistress on 26th June, 2015. Papers were sent for grant of approval to District Basic Education Officer, who approved the selection on 29th June, 2015. The petitioner claims to have assumed the charge on the office of Headmistress on 10th July, 2015.
3. Selection and appointment of petitioner was challenged by one Madhubala Singh, by filing Writ Petition No. 41678 of 2015, who claimed that she was not allowed to participate in the selection though she was eligible and had duly applied pursuant to the advertisement in question. Another candidate, namely Ashutosh Prasad Singh also challenged the selection and appointment of petitioner by filing Writ Petition No. 61437 of 2015 on grounds similar to Madhubala Singh. The appointment of petitioner was directed to abide by the outcome of the writ petitions. It transpires that the District Basic Education Officer called for an explanation from the managing committee on various aspects relating to appointment offered to petitioner vide notice dated 29th April, 2017. The committee of management responded to the show cause notice vide its reply dated 2nd May, 2017. It is thereafter that the District Basic Education Officer has passed the order dated 3rd May, 2017. The order records that:
(i) Even before the signatures of the Manager were attested, he had initiated the process of recruitment, which was impermissible;
(ii) Proper notice has not been given to the candidates before making appointment so as to extend undue favour to limited persons;
(iii) Educational qualification and age for appointment have not been specified in the advertisement;
(iv) Although, seven persons are said to have applied, but it is not clarified as to how their applications were received;
(v) The order also records that though notice has been sent to the Institution on 29.4.2017 calling for reply by 2nd May, 2017, but till 5.00 pm on 3.5.2017, no explanation was received in the office of District Basic Education Officer, Ballia from the petitioner.
4. The order of District Basic Education Officer, dated 3rd May, 2017, came to be challenged in Writ Petition No. 25292 of 2017 wherein an interim relief was granted to the petitioner. This interim order was challenged in Special appeal filed by Ashutosh Prasad Singh being Special Appeal No. 372 of 2017. The special appeal came to be disposed of on 31st July, 2017 vide following orders:-
"We have heard learned counsel for the parties and examined the records of the writ petitions as well as this special appeal.
We are in agreement with the contention raised on behalf of Smt. Rambha Singh that once the selection has been approved and she had joined and was actually working any order of cancellation of approval granted earlier must have preceded an opportunity to the teacher concerned. Any order passed without following such procedure would be in violation of principles of natural justice and and therefore legally not sustainable.
We are of the opinion that the order passed by Basic Shiksha Adhikari dated 3.5.2017 can not be sustained being in violation of principles of natural justice whatever may be the basis for passing such an order. Smt. Rambha Singh was at least entitled to be informed of the grounds on which it was proposed to cancel the approval and to have her say in the matter.
This leads the court to issue as to what should be the next step once the order is found to be in violation of principles of natural justice. In our opinion having regard to the allegations made and the enquiry report received qua Smt. Rambha Singh being a relative of Sri Rakesh Singh, BSA as well as in respect of the mode and manner of the selection of Smt. Rambha Singh being illegal as contended before us by the counsel for the appellant, we are of the opinion that the interest of substantial justice would be served by requiring the Basic Shiksha Adhikari to pass a fresh order in the matter of selection and appointment of Smt. Rambha Singh after affording opportunity of hearing to the Committee of Management of the institution, Smt. Rambha Singh and after examining the original records as may be available in the office of Basic Shiksha Adhikari or may made available qua the selection in question. The appellants are also at liberty to file their representation disclosing the grounds on which they propose to challenge the selection within two weeks from today along with certified copy of this order. The Basic Shiksha Adhikari shall complete the exercise as indicated above within four weeks thereafter by means of a reasoned and speaking order.
We are not expressing any opinion on any of the issues which have been raised by the parties inasmuch all such issues needs examination of records and a finding of fact is to be returned. It is for this purpose that the matter is being asked to be examined by the Basic Shiksha Adhikari.
The writ petitions i.e. Writ-A Nos.25292 of 2017, 61437 of 2015 and Writ-A No. 41687 of 2015 and the special appeal stand disposed of. All consequential actions shall be taken accordingly."
5. Pursuant to the directions issued in Special Appeal No. 372 of 2017, the District Basic Education Officer, Ballia, has reiterated the previous order cancelling the approval granted to the appointment of the petitioner vide his order dated 20.8.2017. This order records that even before signatures were attested of the then Manager, Hridya Nand Singh, he had initiated the process of appointment by asking for permission from the District Basic Education Officer, which was impermissible.
6. A subsequent meeting has been called of the General Body of the Institution in which appointment of petitioner as Headmistress has been held invalid. The District Basic Education Officer, therefore, concluded that appointment of petitioner has not been made in accordance with law.
7. It transpires that the order of the District Basic Education Officer was challenged in Writ Petition No. 10596 of 2018. Contesting parties appeared in the writ petition and the District Basic Education Officer was permitted to revisit the matter after affording an opportunity of hearing to the parties. It is thereafter that an order has been passed by the District Basic Education Officer on 19th May, 2018. It is this order which was under challenge in the writ petition and has been sustained by the learned Single Judge, while dismissing the writ petition. Learned Single Judge has concluded that the advertisement pursuant to which the petitioner has been appointed was not in accordance with the Rule 7(2) of the Uttar Pradesh Recognised Basic Schools (Junior High School)(Recruitment and Condition of Service of Teacher) Rules, 1978. Learned Single Judge has also found the appointment of the petitioner to be a result of favouritism and consequently denial of equality of opportunity under Article 14 and 16 of the Constitution of India. In para 34, the learned Single Judge has observed as under:-
"34. The manner in which the then Manager had proceeded to advertise the post and make selection clearly establishes that the whole exercise was carried out in a predetermined and bias manner to appoint the petitioner on the post of Headmistress. The then Committee of Management sent the signatures for approval to the BSA only on 02.06.2015 but before that, a request for carrying out the advertisement for filling up the post of Headmaster/Headmistress was sent. The approval was granted on 06.06.2015. The advertisement was sent for publication before that and it was published on 06.06.2015 in two newspapers. It has also come on records that the petitioner happens to be relative of Rakesh Singh which is the clear finding in the punishment order dated 29.05.2017 of Shri Rakesh Singh. This Court, therefore, cannot and should not come in the way when the corrective steps have been taken for declaring the appointment of the petitioner as invalid and not in accordance with law. The appointment of the petitioner is tainted and against the statutory Rules and the allegation of bias of the then BSA is also not without substance. The petitioner is holding a public office, but her appointment is tainted and, therefore, this Court does not find any illegality or irregularity in the impugned order whereby the petitioner's appointment has been held to be invalid."
8. Challenging the judgment of learned Single Judge, Sri R.K. Ojha, learned Senior Counsel submits that the process of recruitment was held in a fair and transparent manner; the advertisement was already made and mere non-specification of qualification or age of recruitment cannot be a ground to question it in view of the judgment of this Court in Sister Meera Vs. State of U.P. and others, (2013) 10 ADJ 310; petitioner is not in the prohibited degree of relationship with the District Basic Education Officer Rakesh Singh and merely because she may have been distantly related can be no ground to invalidate her appointment. Learned Senior Counsel submits that since appellant has already been appointed and has worked for several years, as such, there is no reason to interfere with her appointment, particularly when she possesses requisite qualification for the post and procedure for appointment has otherwise been complied with.
9. Sri P.N. Ojha as well as Sri J.P. Singh, learned counsel for the respondents on the other hand submits that the entire process of recruitment lacked fairness and transparency and was at best a farce. It is further stated that the manner in which appointment was made clearly showed that its object was to extend undue favour to the petitioner and once learned Single Judge has found substance in the reasons assigned by the District Basic Education Officer for cancellation of appointment no interference in its be made. Learned State Counsel has also adopted the submissions made by Sri P.N. Ojha as well as Sri J.P. Singh.
10. We have heard learned counsel for the parties and have carefully perused the materials on record. It is not in dispute that the post of Headmaster in the Institution fell vacant on 30th June, 2014 due to superannuation of the earlier Headmaster. It transpires that the elected Manager of the Institution Sri Sanjay Singh resigned on 24th April, 2015. Hridya Nand Singh was allowed to work as Manager for the remaining term by the Managing Committee vide its resolution dated 31st May, 2015. Signatures of Deputy Manager Hridya Nand Singh admittedly came to be recognized on 6th June, 2015. It is even before signatures of the Deputy Manager were attested as the Manager of the Institution that the process of recruitment was initiated by seeking permission to advertise the post.
11. The resolution of the Managing Committee of Institution authorising Hridya Nand Singh to function as Manager came to be approved only on 6th June, 2015. It is even before it that Hridya Nand Singh made a request for grant of permission to make appointment on the post of Headmaster. The District Basic Education Officer Rakesh Singh granted this permission on the 6th June, 2015 itself. The advertisement was also published in two newspapers on 7th June, 2015. From the manner in which the process of recruitment has commenced even before the signature of Manager was attested prima facie indicates haste on part of the authorities in commencing the recruitment process. Although educational authority has doubted legality of appointment on the ground that advertisement did not specify the age and qualification for recruitment, but even if this issue is kept aside, as we find substance in the argument of Sri Ojha that non-specification of age and qualification may not be fatal to the cause of the petitioner in view of the law laid down by this Court in Sister Meera Vs. State of U.P. and others, 2013 (10) ADJ 310, yet there are other glaring facts which requires consideration in the matter.
12. Soon after the appointment was offered to the writ petitioner two petitions came to be filed before the High Court by Ashutosh Prasad Singh and Madhubala Singh, who stated that their applications for appointment have been arbitrarily overlooked. Records of the appeal would go to show that Ashutosh Prasad Singh and Madhubala Singh have informed the District Basic Education Officer that they had made application for appointment to the post of Headmaster and had also attempted to appear before the selection committee but they were not permitted to do so. They were informed that the date of interview has been altered. Later on they came to know that the petitioner has been appointed. Complaint was made by these two persons before the concerned authorities by sending representation. There are written letters on record sent by Hridya Nand Singh in his capacity as Manager, dated 25.6.2015 stating that letter by registered post are received from the aforesaid two persons namely Ashutosh Prasad Singh and Madhubala Singh containing their educational and training qualification. They were informed that the purpose of sending their letter is not clear therefore these letters are being returned. The letters sent to both these persons are on identical terms and are extracted hereinafter:-
"कार्यालय- प्रबन्धक, गौतम पूर्व माध्यमिक विद्यालय बस्ती मुड़ेरा-रसड़ा, बलिया
श्री आशुतोष सिंह
पुत्र श्री सरना
पो० हाजीपुर
जनपद गाजीपुर,
विद्यालय में आपके नाम का एक रजिस्टर्ड डाक लिफाफा प्राप्त हुआ है जिसमें आपके नाम का शैक्षिक एवं प्रशिक्षण योग्यता भरा गया है। शैक्षिक एवं प्रशिक्षण योग्यता विद्यालय को किस आशय/उद्देश्य हेतु प्रेषित किया गया का कोई उल्लेख नहीं होने के कारण रजिस्टर्ड डाक लिफाफा के माध्यम से प्रेषित शैक्षिक एवं प्रशिक्षण योग्यता औचित्यहीन है।
अतः आप द्वारा प्रेषित शैक्षिक एवं प्रशिक्षण योग्यता मूल रूप से व किया जाता है।
ह० ह्रदयानन्द सिंह
प्रबन्धक
गौतम पूर्व माध्यमिक विद्यालय बस्ती
मुड़ेरा एवं रसड़ा बलिया
बस्ती मुडे़रा बलिया
दिनांक 25-6-2015
13. The Manager of the Institution has also sent a representation to the District Basic Education Officer on 11.5.2018 stating that no resolution was ever passed by the managing committee to initiate the process of recruitment; applications sent by Smt. Madhubala Singh and Ashutosh Prasad Singh are available on record, but their educational certificates are not available in the office; quality point marks of other applicants namely Ajay Kumar Singh and Vandana Mishra are higher than that of petitioner but educational certificates of these persons are also not available. Maximum marks at the interview had been given to the petitioner; all other candidates, who secured higher quality marks have been shown absent; the manager has also specified that permission for initiating the recruitment as well as approval of petitioner's appointment has been granted by District Basic Education Officer Rakesh Singh. His father-in-law is Rajendra Singh. Brother of Rajendra Singh is Ravindra, who is married in village Rohana. Petitioner's husband is Dharmendra Pratap Singh. Real sister of Dharmendra Pratap Singh (husband of writ petitioner) is married to Ravindra, who is the real brother of father-in-law of Rakesh Singh.
14. Learned Single Judge has noticed the fact that disciplinary inquiry was initiated against the then District Basic Education Officer Rakesh Singh and Charge No. 5 relating to appointment being offered to his relatives, including the present petitioner, has been proved. Punishment order has also been passed against Rakesh Singh on 29.5.2017.
15. In the facts of the case, we find that the process of recruitment has been initiated in undue hot haste without any resolution passed by the managing committee for initiating the process of recruitment on the post of Headmaster. Admittedly the appointing authority is the committee of management and in the absence of its authorisation the process of recruitment would be without authority of law. The process was otherwise initiated by the Deputy Manager, even before his signatures were formally attested as Manager. The recruitment process does not appear to be fair and transparent, inasmuch as, all persons with higher quality point marks are shown absent and two of the candidates, who had applied for appointment, have not been permitted to take part in the recruitment. Allegation of favouritism otherwise surfaces against the then District Basic Education Officer. Even if we accept the contention of the petitioner that the advertisement for appointment was valid notwithstanding the fact the qualification and age are not specified, yet we find that the recruitment process cannot be said to be wholly transparent. In such circumstances, the decision of the District Basic Education Officer to cancel the approval of petitioner's appointment and dismissal of the writ petition by the learned Single Judge would not require any interference in the present appeal.
16. The appeal consequently fails and is dismissed.
Order Date :- 27.5.2024
Ranjeet Sahu
(Syed Qamar Hasan Rizvi,J.) (Ashwani Kumar Mishra,J.)
